national accrediting organization such as the ABA should not pander to the states' arbitrary idiosyncracies. A law school that is good enough to receive accreditation in one state should be good enough in all states. Yet pander is exactly what the ABA does. In effect, by basing accreditation on a school's actual and expected bar pass rate, the ABA conspires with the states to make it much more difficult for a law school to be accredited in a state with a low pass rate than in a state with a high rate.
The ABA's focus on both bar pass rates and predictors of the rates makes little sense for law schools that would serve blacks because many of their graduates would take jobs that do not require passing the bar. More than any other demographic group, black law graduates often take such jobs in the public sector or in business. It is harmfully irrational for the ABA to impose a standard meant for litigators at large corporate law firms on persons who merely seek to serve the community by working in a local bank or in city government.
Furthermore, the ABA's focus on first-time pass rates excludes many schools wrongly. Although both minority students and other students with relatively low LSAT scores and UGPAs pass the bar exam on their first try at a lower rate than those with higher scores and grades, many of those who fail the first time pass on later tries. Although blacks admitted to law schools due to affirmative action succeed less frequently than other students in passing the bar the first time, they eventually, after additional tries, pass the bar at approximately the same rate. There is no evidence that people who pass the bar after one or more tries make worse lawyers than those who pass the first time.
The ABA's use of LSAT scores, UGPAs, and bar pass rates to grant or deny life to a law school elevates numerical data to a fetish. Many have criticized the overreliance on test scores as a means to grant or deny admission to law school. For example, according to Lani Guinier: "[Many] have ignored the real problem, which is that we are basing admissions for all students mainly on test scores .... What many of us in academia call 'merit' really reflects an overemphasis on test scores, driven by U.S. News & World Report's annual rankings of the nation's law schools." The Educational Testing Service itself, which administers many of the country's standardized tests, warns against relying on them excessively, and it suggests that other indicators of merit should be considered. The ETS notes that "equating standardized test scores with merit supports a mythology that is not consistent with the reality of the data." At least one unaccredited law school, Massachusetts School of Law, has discarded use of the LSAT completely. Although the ABA accreditation standards continue to require accredited law schools to employ the LSAT or another standardized test in admissions, ABA leaders have, ironically, mounted an initiative to convince law schools both to deemphasize reliance on LSAT scores and to develop alternative admissions criteria.
Just as it is inappropriate for law schools to base admission solely on test scores, it is inappropriate for the ABA to use the same test scores to accredit or kill a law school. The same reasons that support the ABA's initiative to deemphasize the LSAT in admissions reject the ABA's imposition of its LSAT cutoff in accreditation. It is inconsistent and hypocritical for the ABA to oppose reliance on the LSAT in admissions because of harsh racial impacts, while at the same time destroying black law schools and excluding blacks from the profession by imposing strict LSAT cutoffs for accreditation.
Indeed, the use of LSAT cutoffs in accreditation is far more harmful than an individual school's use of LSAT scores in admissions. In the 1950s and 1960s, minority groups used standardized tests to overcome discrimination in admissions at many educational institutions. Although the use of standardized tests now tends to harm blacks and some other minorities unfairly, some law schools may believe, whether correctly or not, that use of standardized tests can still play some democratizing role in preventing return to an earlier era when elite educational institutions served only the sons of a rich, white upper class. One school's decision to reject an applicant on the basis of test scores would not, absent accreditation, prevent the person from enrolling at another school, albeit a less preferred one. For example, in the U.S. market for college education, where accreditation does not eliminate schools, there are places for everybody in the thousands of colleges and community colleges. In contrast, the ABA's LSAT cutoffs eliminate completely the opportunity of thousands of people, especially blacks, to attend law school.
5. ABA Accreditation vs. Affirmative Action
Proponents of affirmative action urge that low test scores and grades should not bar African-Americans from attending colleges, universities, and professional schools. For example, William Bowen and Derek Bok recently reported results of a large study of affirmative action in college education. They found that, because of blacks' social disadvantages, SAT scores and high school grades do not adequately indicate their promise and ability. Despite low test scores and grades, blacks who gain admission to good schools become, in the end, just as successful in their professions, including law, as others with higher scores. They take unusually active roles in civic affairs; they become important leaders both within the black community and in the society at large. despite their low test scores and grades, they become "the backbone of the emergent black and Hispanic middle class."
In the legal profession, the ABA's accreditation rules prevent similar successes from occurring. The rules close law schools that would educate a critical mass of middle-class black lawyers who would become leaders and role models. As Bowen, Bok, and other supporters of affirmative action show, even those with low test scores and grades can become excellent professionals and important members of their communities. All they need is the opportunity to prove themselves. The accreditation rules deny this opportunity to those who would have attended the schools that accreditation eliminates.
Similarly a recent study of law graduates of the University of Michigan found that, although LSAT scores and undergraduate GPAs were significant predictors of law school grades, they did not predict career success as measured by satisfaction, income, or service. Although more than four-fifths of Michigan's minority graduates would not have gained admission on their LSAT scores and undergraduate grades, the minority graduates enjoyed as much career success as Michigan's white graduates.
For identical reasons, the ABA's accreditation cutoffs based on average LSAT score and undergraduate GPAs are inappropriate. Low LSAT scores and UGPAs did not accurately predict career success of the Michigan law graduates. Neither do they predict the career success of graduates of the black law schools that the ABA now suppresses. Just as Michigan's minority graduates did much better than their test scores and undergraduate grades predicted, so too would graduates of black law schools. The ABA's accreditation system rips from blacks the chance to prove themselves.
Affirmative action and ABA accreditation are fatally inconsistent. One cannot logically support both. For all of the reasons that affirmative action is good and necessary, the ABA's accreditation cutoffs are harmful and unnecessary. Proponents of affirmative action argue that, because of the shameful history of discrimination, blacks should be given the opportunity to excel, despite lower test scores and grades. ABA accreditation denies them the opportunity. Proponents of affirmative action believe that blacks who receive this opportunity will, despite lower test scores and grades, excel and become community leaders. ABA accreditation assumes exactly the opposite, making the false assumption that blacks with scores and grades below the cutoffs cannot become good lawyers and leaders.
Indeed, in the legal profession, ABA accreditation creates the harms that lead to calls for affirmative action. ABA accreditation excludes most blacks from the profession, causing blacks to be underrepresented among lawyers and judges and in other fields where lawyers predominate. These are exactly the reasons that proponents argue that affirmative action is necessary. Without BA accreditation, there would be less need for affirmative action. The backbone of the legal profession's black middle class would exist without its help. Because ABA accreditation works against the goals of affirmative action, an appropriate term for it is affirmative discrimination.http://academic.udayton.edu/race/03justice/LegalEd/legaled07.htm